Has AAT misinterpreted cl 14.2(1)(a)(i) of Direction No 65?

Federal Court: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen in question will have access to public health system and social welfare if returned to New Zealand? Has the Tribunal misinterpreted cl 14.2(1)(a)(i) of Direction No 65? Were the "other considerations" in the Direction mandatory considerations?

The Applicant's visa was mandatorily cancelled on character grounds pursuant s 501(3A) of the Migration Act 1958 (Cth).

A delegate of the Minister invited the Applicant pursuant to s 501CA(3) to make representations seeking revocation of the cancellation of his visa, which he did.

As the Applicant did not satisfy the character test, the question to the delegate under s 501CA(4) was whether there was "another reason" why the cancellation should be revoked.

The delegate refused to revoke the cancellation of his visa and the Applicant then applied to the Tribunal (AAT) for merits review of the non-revocation decision.

The Tribunal was bound by s 499(2) of the Act to comply with Direction No 65. The Tribunal affirmed the non-revocation decision and its reasons included the following passage:

[51]    Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

a.    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the person began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and

b.    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

[52]     The applicant has resided in Australia for the majority of his life; having arrived in Australia shortly after he was born. However, less weight is given to this consideration because the applicant started criminally offending at the age of 18 and has continued to commit criminal offences since that time; a period spanning nearly 20 years. He has been criminally offending in Australia for most of his adult life.

...

[58]    There is no substantive language or cultural barrier to the applicant returning to New Zealand. As a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship in New Zealand. I accept that the applicant will face a period of adjustment in New Zealand and will face certain impediments. The challenges likely faced by the applicant upon his arrival in New Zealand are not insurmountable.

The Applicant eventually applied for judicial review of the Tribunal's decision to the Federal Court (FCA), the questions to which were as follows:

Question 1: In considering whether to revoke a visa cancellation under s 501CA(4), is evidence required to support a decision-maker's conclusion that the non-citizen will have access to public health system and social welfare if returned to New Zealand?

Question 2: Did the Tribunal misconstrue cl 14.2(1)(a)(i) by "stating that the applicant had arrived in Australia shortly after he was born and then subsequently giving less weight to the duration of his residence in Australia because he had started his criminal offending when he was aged 18"?

Question 3: Were the "other considerations" in the Direction mandatory considerations?

The FCA answered those questions as follows:

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